ACLU responds to Bergner complaint

July 26, 2012

SOUTH KINGSTOWN - The Rhode Island chapter of the American Civil Liberties Union requested the South Kingstown Town Council change recently implemented policies regarding meeting decorum. The ACLU says the policies are unconstitutional violations of free speech.

In March, the town council introduced new policies regarding meeting etiquette. These included a ban on texting and cell phone use, with the exception of the police chief and members of the media. The council also prohibited citizens from mentioning council members by name during comment and passed general rules regarding decorum including banning “personal attacks.”

Deb Bergner, a Wakefield resident and member of the Democratic Town Committee, wrote to the ACLU alleging that these new rules were in violation of the first amendment.

The ACLU agrees.

“I’m very happy that my concerns were validated,” Bergner said. “I feel that my concerns regarding impropriety of council members will also prevail.”

In a letter sent to Ella Whaley, town council president, Steve Brown, executive director of the ACLU wrote that a ban on texting “amounts to a serious intrusion on the First Amendment rights of attendees” and asked the council to “formally rescind this prohibition.”

Brown also requested the council make clear to members of the public that texting is allowed during meetings. He compared texting to taking notes, which he wrote he assumes “the council would never think to ban” and added that there is nothing disruptive about texting.

According to Steve Alfred, town manager, Michael Ursillo, town solicitor, discussed the texting ban and its constitutionality with the town council at a work session in May and said the ban had to be lifted.

Ella Whaley, town council president, said that the ban was in place out of respect for a resident who was made ill by the radiation emitted from cell phones. The resident had previously approached the town council asking that cell phones be turned off in the chambers during meetings.

Whaley noted that although the ban has since been lifted and members of the public can now send text messages during meetings, the town council previously faced issues of what she called “distracting and disrespectful” texting as meeting attendees would hold their cell phones in the air, attempting to send messages.

Brown and the ACLU also addressed Bergner’s concerns regarding mentioning specific names during time for public comment at the meetings.

Bergner was reprimanded for addressing Councilman Jim O’Neill during a town council meeting and was told not to use any names.

The ACLU agreed with this as well, writing that no written rules exist in the town council’s written “Rules of Conduct” adding that such a rule could not be “constitutionally enforced.”

Brown wrote, “In many instances it is difficult, if not impossible, to separate discussion of a town matter from the employees or officials who are involved in it. To bar members of the public from specifically naming members of the town council or town employees is thus a serious intrusion on the free speech rights of members at these meetings.”

Town officials said that the issue of “naming names” was also addressed in June.

“The use of names is allowable,” said Steve Alfred, town manager. “Both of these issues had been addressed well before the time the letter came in from the ACLU.”

Town Council President Whaley said that this rule was not instituted during her presidency, but two presidencies ago, when Polly Eddy, now a councilwoman, presided. It was continued into Councilwoman Kathy Fogarty’s presidency.

She said this rule was created out of a host of bitter arguments between residents and town council members. However, she added that members of the public are allowed to use council members’ names.

Regarding Bergner’s third concern pertaining to the new “rules of decorum” the town council instituted in March, Brown said he was not able to find these rules in writing.

The Narragansett Times previously reported that these rules stated that the council would limit side bar conversations, maintain respect and prevent repetition unless new information comes forward. The rules also said that the council would no longer tolerate negative body language at the table or personal attacks.

Based on news articles, the ACLU determined that while these rules of decorum may have been intended to address activities of town council members themselves, the previously published “Rules of Conduct” subject members of the public to the same rules applicable to members of the council.

However, regarding the rules of decorum and to the extent in which they essentially ban members of the public from verbally making any undefined “personal attacks,” Brown wrote that this raises “significant constitutional concerns.” He added that it is “therefore critical that any ‘rules of decorum’ affecting the public should be clear, explicit and in writing.

Ultimately, the ACLU has asked that the town council revise and clarify its various policies and procedures in order to ensure that the free speech rights of town residents are respected.

“We came up with guidelines to keep decorum at the table,” Whaley said. “We came up with ground rules to get through a meeting and treat each other with respect. As president, it’s my job to keep things civil.”

Whaley said rules were never voted on, but agreed upon simply to maintain order in the council chambers.

Of Bernger’s complaints and the ACLU’s letter Whaley said, “She has blown this way out of proportion. It’s not true, she used a lot of inaccurate, false information.”

She added that everything the ACLU’s letter mentioned has already been addressed and that the town’s attorney will be making a call to the ACLU and cited concerns that the ACLU did not come to the town council and town officials with this “inaccurate” information before sending a letter.

Regarding the recommended review to the “Rules of Conduct” Whaley said, “We will take the letter under advisement, but the ‘Rules of Conduct’ have been in place for 10 years and nobody has ever questioned them. What Bergner brought up is not part of the ‘Rules of Conduct.’”